In its opinion, the Appellate Division held that the ban violated New York state’s curious doctrine of “separation of powers,” under Boreali v. Axelrod (N.Y. 1989). This was a clarification of the trial court opinion, which seemed to invalidate the rule both for violating separation of powers and for being “arbitrary and capricious.” Boreali, as I explain in my paper, relies heavily on nondelegation reasoning that has largely been abandoned at the federal level, constricting agency power based on the dubious premise that administrative “rulemaking” and legislative “policymaking” can be neatly separated. There is nothing wrong with a state retaining its own distinctive brand of constitutional interpretation, of course, but there are good reasons to be skeptical of Boreali‘s “test” for whether administrative rulemaking has encroached on the supposedly separate sphere of legislative “policymaking.”

Boreali, as applied by the Appellate Division, requires an almost monastic approach to administrative rulemaking in which agencies like the Board of Health do not consider anything but health concerns in promulgating their regulations. Because the Board’s exemption of certain drinks (like milk-based drinks) and retail establishments was based in part on practical or economic concerns, the court held that the Board had engaged in “policymaking” outside its proper realm. Indeed, the court even concluded that because the rule “manipulates choices to try to change consumer norms,” it concerns itself with non-health-related issues, as if consumer norms were not integrally related to public health!

Other discouraging aspects of the Appellate Division opinion include its narrow reading of the Board’s authority under the city charter (which grants the Board the power to regulate “all matters affecting the health of the City”). Like the trial court, the Appellate Division believes that the Board’s powers are limited to “sanitary” matters, and dismisses the notion–despite myriad scientific data–that soda consumption is a health hazard.

The Bloomberg administration may appeal the decision to the New York Court of Appeals (the state’s highest court), which has the discretion to decline hearing the appeal. Regardless, the momentum behind the regulation has been nearly killed by these decisions. Businesses like Dunkin’ Donuts were prepared to comply, and I have no doubt that the rule could have been smoothly implemented. With Bloomberg’s term almost expiring and his potential successors lukewarm, if not hostile, to the rule, the chance of this innovative approach to fighting obesity and dental decay actually taking effect now appears slim.

About pdiller

Paul Diller is an associate professor at Willamette Law whose research focuses on local government, policy innovation, the police power, and related issues of state and federal constitutional law. His scholarly work has appeared in, among other journals, the Stanford Law Review, The University of Chicago Law Review, the Michigan Law Review, and the Georgetown Law Journal. In recent years, Diller has worked on local obesity prevention policy with a leading nonprofit public health organization. Diller graduated from the University of Michigan Law School and the University of Pennsylvania, both magna cum laude. In his spare time, he enjoys baseball, snowboarding, drinking coffee, and spending time with his family.